Delhi HC calls out misuse of UAPA

Context:

By ruling that “terrorist activity” cannot be broadly defined to include ordinary penal offences, the three Delhi High Court orders granting bail to three student-activists marks a crucial moment.

Relevance:

GS-II: Polity and Governance (Government Policies and Interventions, Issues arising out of the design and implementation of policies, Important Judgements)

Dimensions of the Article:

1. The Unlawful Activities (Prevention) Act (UAPA), 1967
2. Unlawful Activities Prevention Amendment Bill, 2019
3. Some Concerning Points about designation of someone as terrorist
4. Issues with UAPA
5. About the Increasing UAPA cases
6. About the recent Delhi HC judgement

The Unlawful Activities (Prevention) Act (UAPA), 1967

• The Unlawful Activities (Prevention) Act (UAPA) of 1967 is an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (which lapsed in 1995) and the Prevention of Terrorism Act – POTA (which was repealed in 2004).
• Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.
• The National Integration Council appointed a Committee on National Integration and Regionalisation to look into, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India.
• The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.
• However, the provisions of the UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights.

Unlawful Activities Prevention Amendment Bill, 2019

• The original Unlawful Activities Prevention Act, 1967, dealt with “unlawful” acts related to secession; anti-terror provisions were introduced in 2004.
• It provides special procedures to deal with terrorist activities, among other things.

Key Provisions of the Amendment

• The Bill amends the Unlawful Activities (Prevention) Act, 1967 (UAPA) and additionally empowers the government to designate individuals as terrorists on the same grounds.
• Under the Act, the central government may designate an organisation as a terrorist organisation if it:
  1. commits or participates in acts of terrorism
  2. prepares for terrorism
  3. promotes terrorism
  4. is otherwise involved in terrorism
• The word “terror” or “terrorist” is not defined.
• However, a “terrorist act” is defined as any act committed with the intent –
  1. to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India
  2. to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
• The central government may designate an individual as a terrorist through a notification in the official gazette.
• The Bill empowers the officers of the National Investigation Agency (NIA), of the rank of Inspector or above, to investigate cases.
• Under the Act, an investigating officer can seize properties that may be connected with terrorism with prior approval of the Director General of Police.

Some Concerning Points about designation of someone as terrorist

• The government is NOT required to give an individual an opportunity to be heard before such a designation.
• At present, legally, a person is presumed to be innocent until proven guilty.
• In this line, an individual who is convicted in a terror case is legally referred to as a ‘terrorist’.
• And those suspected of being involved in terrorist activities are referred to as ‘terror accused’.
• The Bill does NOT clarify the standard of proof required to establish that an individual is involved or is likely to be involved in terrorist activities.
• The Bill also does not require the filing of cases or arresting individuals while designating them as terrorists.

Issues with UAPA

• UAPA gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities. Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the Constitution.
• UAPA empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for a developing democratic society. The right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2).
• UAPA can also be thought of to go against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7th schedule of Indian Constitution.

How can the names be removed?

• Application – The Bill seeks to give the central government the power to remove a name from the schedule when an individual makes an application.
• The procedure for such an application and the process of decision-making will also be decided by the central government.
• If an application filed is rejected by the government, the Bill gives the person the right to seek a review within one month of rejection.
• Review committee – Under the amendment Bill, the central government will set up a review committee.
• It will consist of a chairperson (a retired or sitting judge of a High Court) and 3 other members.
• It will be empowered to order the government to delete the name of an individual from the schedule that lists “terrorists”, if it considers the order to be flawed.
• Apart from these two avenues, the individual can also move the courts challenging the government’s order.

About the Increasing UAPA cases

• According to data provided by the Ministry of Home Affairs in Parliament in March, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015.
• UAPA, in relaxing timelines for the state to file chargesheets and its stringent conditions for bail, gives the state more powers compared to the Indian Penal Code.
• Union Home Ministry presented data in the Rajya Sabha, based on the 2019 Crime in India Report compiled by the National Crime Records Bureau (NCRB), which showed that only 2.2 % of cases registered under the Unlawful Activities (Prevention) Act between the years 2016-2019 ended in convictions by court.
• As many as 1948 persons were arrested under the UAPA in 1226 cases registered across the country in 2019. Such cases registered in 2015-2018 stood at 897, 922, 901 and 1182 and the number of those arrested was 1128, 999, 1554 and 1421 respectively.

About the recent Delhi HC judgement

• This is perhaps the first instance of a court calling out alleged misuse of the UAPA against individuals in cases that do not necessarily fall in the category of “terrorism” cases.
• Quoting sections of the Unlawful Activities Prevention Act, 1967, and a string of key Supreme Court rulings on terrorism and terror laws, the court reasoned that “the more stringent a penal provision, the more strictly it must be construed”. By doing so, it raised the bar for the State to book an individual for terrorism under the UAPA.
• This caution is significant given the sharp surge in the state’s use of this provision in a sweeping range of alleged offences — against tribals in Chhattisgarh, those using social media through proxy servers in Jammu and Kashmir; and journalists in Manipur among others.
• The bail orders also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.

Interpretation argument

• The Delhi Police argued that the terror clause in UAPA can be invoked, not just for the “intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity”, or “the intent to strike terror but the likelihood to strike terror, not just the use of firearms” but also for “causing or likely to cause not just death but injuries to any person or persons or loss orRejecting this interpretation, the court said that it is a “sacrosanct principle of interpretation of penal provisions” that these must be construed strictly and narrowly. This is key to ensuring that a person who was not covered by the legislative ambit does not get roped into a penal provision. damage or destruction of property.”
• “The extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law,” the court said, citing a 1992 SC ruling in the case of Hitendra Vishnu Thakur v State of Maharashtra.

-Source: Indian Express